The Justice Committee issued an emergency Call for Views on the options proposed for Freedom of Expression amendments to the Hate Crime Bill. Our submission is as follows, and can also be downloaded as a pdf:
We are troubled that it has taken so long for these crucial amendments to be considered in this Bill. Cynically we are frightened that the Government is running the clock down and is looking for a botched compromise rather than a proper examination of the issues at stake.
As far as the proposals are concerned; Option One is the least worst. However, it does not cover all our concerns. At this stage we would draw the Committee’s attention to a similar hate crime bill in Spain where the hanging of an effigy of the Deputy Prime Minister Carmen Calvo, who has defended women’s rights, is not a hate crime. However, a renowned feminist campaigner, Lidia Falcon (85 years old and who was tortured by Franco) can be prosecuted under their hate crime law for campaigning for the rights of women as a sex class.
If this is what the Scottish Government want for women in Scotland, they need to state this on the face of the Bill. If not, they must incorporate definitions and protections.
We continue to be bemused by the determination of some in the Scottish Government and funded organisation to dismiss and undermine important work on sex in hate crime because it does not suit a predetermined political agenda.
In writing his report, Lord Bracadale consulted widely and concluded that an aggravator of gender (sex) should be added to the Hate Crime Bill.
While taking on board the objections raised by a tight knit group of Scottish organisations, he nevertheless felt that a stand alone offence would be superfluous and risk confusion. He was also concerned that momentum might be lost if there was further delay in meaningful action.
We were disturbed, but sadly unsurprised, that, once again, the Committee passed-up the chance to add sex to the Hate Crime Bill while failing to progress on free speech amendments which might have protected women speaking out against sexism and misogyny.
We agree with the Convener that the events and reactions of recent days have made the need for clarity around free-speech more, not less, acute. We would also say that they indicate the frightening pitch which some activists have reached, and their often barely concealed hatred of women.
To add insult to injury, the Cabinet Secretary remains determined to include “cross dressers” under this bill citing anecdote and supposition as “evidence”: “One of those examples is that a man who is not a transwoman who is dressed for say a drag performance…could be at high risk of transphobic hate crime. It is very likely that a perpetrator could later claim that they had no issue with a transwoman who is really transitioning and only had a problem with men dressing up as woman without transitioning.” (our emphasis).
We do not know how many men have been the victim of crime while on the way to a drag show. We do know there were only seven hate crime convictions under the transgender aggravator (it is unknown how many of these related to cross dressers) in 2018/19, so the evidence does not appear to support the scenario envisaged by Mr Yousaf.
However, we do know that thousands of women are routinely harassed and abused – many because of what they were wearing.
The Committee cited witnesses who were opposed to “gender neutral” legislation when considering the characteristic of sex. Ironic, then, that the bill as it stands is skewed to affording greater protection to men and none to women.
FWS are delighted by Jeane Freeman’s decision to back Johann Lamont’s amendment to the Forensic Medical Services Bill. This Bill provides for improved services and much needed support and reassurance for survivors of sexual violence. It was overwhelmingly clear from the powerful testimony given at Stage 1 that one of the most crucial things for survivors was the ability to request a female examiner.
During this period, FWS noticed a detail which we felt required attention: while the documents accompanying the Bill, including the SPICe Briefing and the Policy Memorandum refer to the sex of the medical examiner, the Bill’s Explanatory Notes stated that a victim could request that the person carrying out the medical examination be of a specified gender. This originates from Section 9 of the Victims and Witnesses (Scotland) Act 2014:
We therefore submitted a letter to the Health and Sport Committee suggesting that clarity would better be achieved by substituting the word sex for gender and the Committee agreed with our recommendation.
At a time when the Scottish Government was considering definitions of sex and gender, we felt it was crucial that this Bill was not, retrospectively, held to mean anything other than allowing women the right to request a female examiner. We also believed that if sex, which is a protected characteristic, were specified it would put an obligation on employers to ensure they used the genuine occupational requirement to recruit female staff.
The subsequent campaign for this amendment has been inspired by the outstanding women who gave evidence and those who wrote yesterday to MSPs. We know how difficult this has been and how much it has cost them to relive their experiences. In legislation and services which deal with the impact of such violence, these women’s voices should always be heard. This campaign has never been about politics or linguistic quibbles – it has, first and last, been about them.
We are also so grateful to Johann Lamont who went into battle for these women and we are thankful to the Health Secretary and all the parliamentarians who decided that six words “for the word gender, substitute sex” could make a world of difference.
A gender aggravator to crimes was first mooted in the Draft Criminal Code for Scotland some seventeen years ago. Later the same year Robin Harper MSP lodged an amendment to the Criminal Justice (Scotland) Act 2003 to make provision for offences aggravated by disability, sexual orientation, age and gender. Mr Harper’s amendment was not accepted but did lead to the establishment of a Working Group to further consider what improvements could be made to hate crime legislation.
Members of this Working Group included representatives from Equality Network, Stonewall and Engender. 102 individuals and groups responded to the main consultation (although both Engender and Scottish Women’s Aid withheld their submissions from publication). A Hate Crime Report was published in October 2004 detailing 14 recommendations for the Government – protection for transgender identity was in, along with sexual orientation and disability, but women were out.
The minutes of the meetings of the Working Group seem to be lost to the archives but the final report does indicate that a number of women’s groups called for the characteristic of gender to be added, in opposition to the views of the Scottish Executive’s Violence Against Women Unit:
On Tuesday 24th November For Women Scotland will give evidence to the Scottish Parliament’s Justice Committee on the controversial Hate Crime and Public Order Bill.
In our written submission, we made clear our objection to Part 2 of the bill, which seeks to extend the offence of stirring up hatred, but also our objection to the non-inclusion of ‘sex’ as a protected characteristic.
There have already been three oral evidence sessions and we have been closely monitoring the discussions.
Across the three sessions, there have been a total of 32 witnesses, two thirds of whom were men. The Committee, of course, has limited control over the make-up of the panels, but we note that, once again, women have been outnumbered in discussions about an important aspect of law reform that will impact them.
The Delegated Powers Memorandum for the Hate Crime and Public Order (Scotland) Bill contains a clause that states: “Regulations under this section may modify section 14 (meaning of the characteristics) by adding interpretative provision relating to the characteristic of sex. They may also make incidental, supplementary, consequential, transitional, transitory or saving provision, and make different provision for different purposes.”
This means that if the characteristic of “sex” is added to the Hate Crime legislation at a later date then it can be redefined by a Committee, without public consultation or Parliamentary scrutiny, and may differ from the definition given in the Equality Act: